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3S.ep0rt 



COMMITTEE OF THF HOUSE OF REP-- 
RESENTATIVES, 

Respecting certain Military Orders issued by His Honor 
LEVI LINCOLN, Lieutefiant-Govemor, and Com^ 
viander in Chicrf of the Commonweal 'h of Massachu- 
setts ; with the Documents referred to in the same* 

1 HE Commtttee appointed "to inquire 
"^hat military orders have been issued by his Hon- 
or the Lieutenant-Governor of this Common- 
wealth, or by the Adjutant-General, for the pur- 
pose of calling on the nnlitia of this Commonwealth, 
to enforce the embargo laws ; and the manner in 
which said orders have been issued and executed," 
with orders " to proceed on said busif>ess, and 
report on the subject at large to this House as 
soon as possible,*'^ have attended to that service, 
and ask leave to report — 

That on the first day of February, instant, mil- 
itary orders were issued through the Adjutant- 
General's office, by his Honor Levi Lincoln, Lieu» 
tenant-Governor and Commander in chief of this 
Commonwealth ; a copy of which orders accom- 
panies this Report. 

They find by the statement of the Adjutant- 
General, that these orders were directed and sent 
to the following officers sev^erally, viz. Thomas 
Badger, Lieut. Colonel-Commandant y Charles 
Turner, Lieutenant-Colonel ; Ebenezer Lothrop, 
Brigadier-General ; David Nye, Lieutenanl- Col- 
onel; Baker Loring, Ebenezer Bowdich, and 
Thomas Williams, Captains ; James Bricket, Ma- 
jv)r- General ; Charles Bean^ Simon Nowell^ an.:i 



: , ■'^''^ 

Moses Brai-dbury, Captains ; James Merrill, and 
Charles T^homas^,- Lieutenant-Colonels ; Joshua 
Danforth, Cspt^iji *, Samuel Reed, Lieutenant-Col- 
onel ; and John CoopCf, Brigadier-General : with 
the exception that the followiiTgWiprds were not 
inserted in the order sent to Colonel Badger ; 
\vhich the Adjutant-General states to have been 
omitted by mistake, viz. " Recollecting that in 
the happy government established by the American 
-people, the character of the citizen, is not lost in 
ihat of the sojdier, and that coolness, firmness, 
prompt obedience, and a sacred regard ta the 
rights of society, and individuals are essential to 
•both ; you will duly, appreciate this opportunity 
X)f serving your country, and of even increasing the 
xonfidence she has placed in you.'*' 

Your Committee ind that the officers above 
^lamed were designated and appointed as '' the 
itiilitia oilieers" near several Ports of Entry witli^ 
in this Commonwealth, " to whom the Collector 
of the District is to apply, if it shall be necessary, 
to accomplish" the "purposes of the National Gov- 
ernment,'* as *' specified" in the orders. They 
are required to " be prepared and hold themselves 
in readiness with those under their command, 
.armed and equipped^ at the call of the Collector, 
.and subject t® his discretion, to aid him with their 
whole force, or such part thereof as may be suffi- 
cient to enable him within his District to discharge 
his duties, prevent disorder> and opposition to the 
authority of Government, and carry the aforesaid 
laws into execution ;'* and to " make correct mus- 
ter and pay rolls of such militia as shall be enu 
, ployed in actual service, and transmit the same to 
the War Department of the United States. '"" 

The places of abode of the officers, and the 
Ports of Entry comprised within their several com- 
mands, are stated in a. Schedule from the Adju> 
tant-General's office;, accompanying this Report* 



' Your Committee find, according to the statc- 
snent of the Adjutant-General, that an officer has 
HOt been appointed " in or near to each Port of 
Entry within this State/' No officer has been 
appointed, according to his statement, whose com- 
mand appears to extend to either of the ports of 
Castine, Frenchman's Bay, Nantucket, Dighton, 
or Gloucester ; unless the name of Gloucester 
ought to be added in the Schedule to the names 
of Newburyport and Ipswich, opposite the name 
of General'james i3rickett, of Haverhill; whidi 
the Adjutant-General " beUeves" ought to be the 
case, and which he says was accidentally omitted. 

It will be seen by the said Schedule, that Ma- 
chias, Passamaquoddy, and Moose Island, are all 
placed opposite the name of Brigadier-General 
John Cooper, of Machias. By the same docu- 
ment it appears, that the number of infantry^ rank 
and file, of the entire command of the General 
and Field Officers afore-named, amounts to fifteen 
thousand two hundred and sixty-nine. The Ad- 
jutant-General does not state whether there are 
troops of any other description under their com- 
mand. Your Committee could not ascertain the 
number of men under the command of the seven 
Captains, thus appointed, because the returns 
of Companies never appear in the Adjutant- 
General's office. 

Contrary to military custom and the uniform 
usage in this Commonwealth, the orders to the 
Brigadier-Generals, Lieutenant-Colonels and Cap- 
tains were sent directly to them respectively, with- 
out passing through the hands of their superior 
officers, and without consulting them, or giving 
them any notice of the same. 

The Adjutant-General informed your Com- 
mittee, that he had seen a letter from the Secre- 
tary at War to His Honor the Lieutenant-Gov- 
ernor, upon the subject of these appointments. 



%f^\ that he had no copy of the saBi€ ; and that he 
beUeved it had always been the practice with 
other Governors of this Commonwealth to retain 
any communications to them from the Secretary 
at War of the United State*. 

Your Committee did not think it expedient to 
apply to Kis Honor for any communications 
which he might have received from the President 
<?r the Secretary at War. 

Your Committee, under the injunction to re- 
port as soon as possible, have confined their in-* 
quiries respecting the manner in which the orders 
of His Hoaor have been executed, to the District 
of Boston and Charlestown, They find that 
Colonel Badger received the orders of the tom- 
mander in Chief on the second or third of Feb- 
ruary instant ; that by an order dated the seventh 
instant^ he directed the commissioned officers un<- 
der his command to meet oh the following even« 
ing on military business ; that the oiEcers having 
accordingly convened, the orders of the Com- 
mander in Chief were read to jthem, and tliey 
^vere required to hold themselves in readiness to 
march at a moment's warning with the men under 
their respective commands, for the purpose of 
enforcing the Embargo Laws, agreeably to the 
said ordersc 

Your Committee find that some of the officers 
so convened, belonged to a detachment consisting 
of five Companies, v/ith a suitable proportion of 
officers, which had lately been detached from said 
Colonel Badger's command, and put under the 
command of Colonel Barnes, of Roxbury ; and 
that they form apart of the 100,000 men lately 
drafted for the service of the United States. Ap- 
plication was made to Colonel Badger, by some 
of his officers, at the time of said meeting and af^ 
terwards for a copy of said Orders, but they could 
ijiot obtain them. Application was also made to 



9 

die Adjutant-General for atopy of the Oraersj. 
l>ut without success. It was stated to your Com- 
mittee, both by the Adjutant-General aiid Colonel 
Badger, that doubts having been entertained re-' 
specting the authority of the Naval Officer of the 
district of Boston and Charlestown, he had not 
been informed of these Orders, and it was inti- 
mated that this circumstance had prevented the 
drculation of the Orders in the usual mode. 

Your Committee find that by the Constitution 
of the United States, Congress is authorized " tc^ 
provide for the calling forth the miUtia to execute 
the laws of the Union, suppress insurrections, and 
repel invasions ;*' and that the President is th^' 
" Commander in Chief of the army and navy of 
the United States, and of the militia of the several' 
States, when called into the actual service of the Unit^ 
ed States,^' 

Your Committee also find that by a law of the' 
United States,.passed February 28, 1795, entitled 
*' An Act to provide for calling forth the militia* 
to execute the laws of the Union, suppress insur-* 
rections and repel invasions, and to repeal the Act? 
now in force for those purposes," it is enacted, 
" that whenever the laws of the United Statei? 
shall be opposed, or the execution thereof ob- 
structed in any State, by combinations too powers 
ful to be suppressed by the ordinary Course of ju- 
dicial proceedings or by the powers vested in the 
Marshal by this Act, it shall be lawful for the 
President of the United States to call forth the 
militia of such State, or of any other State or States, 
as may be necessary to suppress ' such combina- 
tions, and to cause the laws to be duly executed ; 
and the use of the militia so to be called forth may 
be continued, if necessary, until the expiration of 
thirty days after the commencement of the then 
Bext session of Congress :*' " Provided alivays^ that 
whenever it may be necessary in the judgment of 



die President to use the military force hereby cH- 
xected to be called forth, the President shall forth- 
with, by Proclamation, command such insurgents 
to disperse and retire peaceably to their respective 
abodes within a limited time." 

Your Committee find that when there was an 
insurrection in the western parts of Pennsylvania, 
in the year 1794, and the insurgents finally per- 
petrated acts which amounted to treason, being 
<?vert acts of levying war against the United States, 
President Washington then proceeded most scru- 
pulously, in conforrhity to the Act of Congress 
then in force, ** to provide for calling forth the 
militia, to execute the laws of the Union, suppress 
insurrections, and repel invasions ;" and troops 
were called forth from several States at the request 
of the President, by the Governors of the same, in 
the usual manner, according to law and custom. 
The Committee presume, however, that it will be 
readily perceived that nothing in the Constitution 
or Laws of the United States authorizes the Presi- 
dent, under existing circumstances, to call forth 
the militia of this State, or any part thereof. 

By the 10th section of an Act of Congress 
passed January 9th, \ 809, it is provided, " That 
it shall be lawful for the President of the United 
States, or such other person as he shall have em- 
powered for that purpose, to employ such part of 
the land or naval forces, or militia of the United 
States or the territories thereof, as may be judged 
necessary, in conformity with the provisions of 
this and other Acts respecting the Embargo, for 
the purpose of preventing the illegal departure of 
any ship or vessel, or of detaining, taking posses- 
sion of and keeping in custody and guarding any 
specie or articles of domestic growth, produce, or 
manufacture ; and also for the purpose of pre- 
venting and suppressing any armed or riotous as- 
semblage of persons, resisting the Custom-House 



OfEcers in the execution of the Laws laying ais 
Embargo ; or otherwise violating, or assisting 
and abetting violations of the same." 

The present Legislature of this Commonwealth 
have " Resolved, that the said Act of Congress, 
passed on the 9th day of January, in the present 
year, for enforcing the Act laying an Embargo and 
the several Acts supplementary thereto, is, in 
the opinion of the Legislature, in many respects 
unjust, oppressive and unconstitutional, and noH 
legally binding on the citizens of this State.'* > 

But even if this Act were admitted to be con-» 
stitutional, your Committee do not find that by the 
said Act, Congress have provided any new mode 
of calling forth the militia ; and they conceive 
that the militia cannot legally be "employed" by 
the President of the United States, or by any per- 
son empowered by him, till they have been called 
forth in the mode which Congress had previously 
prescribed^ 

Your Committee find that by the Constitution 
of this Commonwealth, Chap. IL Sect. 1. Art. 7. 
the Governor is *' entrusted" with all the "powers 
incident to the offices of Captain-General anl 
Commander in Chief and Admiral, to be exercis- 
ed agreeably to the Rules and Regulations of the 
Constitution and the Laws ofiheLand^ and not oth- 



erwise.*^ 



The same Constitution, Bill of Rights, Art. 
17, declares that " the military power shall 
always be held in exact subordination to the civH 
authority, and be governed by it." This great 
principle is repeatedly recognized by our Laws, 
and was respected even amidst the horrors of a 
rebellion. By a Law passed February 20th, 1 787, 
the preamble to which states, that an unnatural 
and dangerous rebellion actually existed at that 
time in this Commonwealth, it is declared, that 
" In a free Government, where the people have :i 



right to bear arms for the eommon defence, tte 
military power is held in subordination to the 
€ivil authority.'* 

In the 32d Section of the Militia Law of this 
Commonwealth, passed June 22d, 1793, which 
provides for calling out the militia " in case of 
threatened or actual invasion, insurrection or 
other public danger or emergency," it is enacted 
that whenever a detachment is made in any such 
case, " the officers, non-commissioned oflkers and 
|)rivates, being able of body, shall fe detailed from 
ihe rosters or rolls which shall be kept for that pur-- 
pose.''* And your Committee do not find that the 
Commander in Chief of this Commonwealth is 
authorized, in calling out the militia, to select and 
designate particular officers and particular corps or 
men, without regard " to the rosters or rolk 
which shall be kept for that purpose^'* 

WhereforCj Resolved-^ 
That in the opinion of this House, the said mit^ 
jtary orders of the J st of February instant, issued 
by his Honor Levi Lincoln, Lieutenant-Governor 
and Commander in Chief of this Commonwealth, 
are irregular, illegal, and inconsistent with the 
principles of the Constitution ; tending to the de- 
struction of military discipline, an infringement 
of the rights, and derogatory to the honour of botli 
officers and soldiers ; subversive of the militia 
system, and highly dangerous to the liberties of 
the j>eople. 

Ail which is respectfully submitted. 

ISAAC MALTBY, Per order. 



ORDER referred to in the REPORT. 



To • . 

SIR, 

YOU are sensible that Congress is author- 
ized, by the Constitution of the United States, to 
provide for the calling forth of the militia to exe- 
cute the La\rs of the Union, suppress insurrec- 
tions, and repel invasions ;" and that the PresS- 
dent is the " Commander in Chief of the Army 
and Navy of the United States, and of the militia 
of the several States, vi^hen called into the actual 
service of the United States." 

In pursuance of these constitutional powers, to 
prevent a repetition of those rash, indiscreet, un- 
warrantable and alarming evasions of the laws of 
the Union, which have disgraced our State, and 
been injurious to the respectable citizen and fair 
trader ; it is provided by the eleventh section 
of an Act of Congress, passed January 9th, 1 809, 
/'That it shall be lawful for the President of 
the United States, or such other person as he 
jshall have empowered for that purpose, to em- 
ploy such part of the land or naval forces, or 
militia of the United States or the territories 
thereof, as may be judged necessary, in conform- 
ity with the provisions of this and other Acts re- 
specting the Embargo, for the purpose of pre- 
venting the illegal departure of any ship or ves- 
sel, or of detaining, taking possession of, and keep- 
ing in custody, any ship or vessel, or of taking 
into custody and guarding any specie or articles 
of domestic growth, produce or manufacture ; 
and also for the purpose of preventing and sup- 
pressing any armed or riotous assemblage of per- 
sons resisting the Custom-House Officers, in the 
execution of the laws laying an Embargo, or oth- 
B 



10 

erwise violating, or assisting and abetting viola* 
tions of the same." 

Thus authorized and called on to execute the 
laws of the Union, and to cause its authority to 
be respected, the President has directed the Sec- 
retary of War to request me, as commanding 
officer of the militia of this Commonwealth, to 
appoint some officer of the militia, of known 
respect for the laws, in or near to each port of 
entry within this State, with orders, when ap- 
plied to by the Collector of the District, to assem- 
ble immediately a sufficient force of his militia, 
and to employ them efficaciously to maintain the 
authority of the laws respecting the Embargo. 
The President is peculiarly anxious that the 
officers selected should be such who can be best 
confided in to exercise so serious a power, with 
all the di^crection, the forbearance, and the kind- 
ness, which the enforcement of the Embargo 
Laws will possibly admit ; ever bearing in mind, 
that the life of a citizen is never to be endanger- 
ed, but as the last melancholy effi^rt for the main- 
tenance of order and obedience to the laws. 
Confiding in your discretion, humanity, patriot- 
ism, and inviolable respect for the Laws and the 
Constitution of our common country ; in obe- 
dience to the direction of the President, and in 
pursuance of the foregoing authority, I do here- 
by designate and appoint you the militia officer 
near the port of entry for the District of — , 
to whom the Collector of the District is to apply, 
if it shall be necessary, to accomplish the above; 
specified purposes of the National Government, 
and to execute the aforesaid Laws of the Union. 
You will therefore be prepared, and hold your- 
self in readiness, with those under your com- 
mand, completely armed and equipped, at the call 
of the Collector, and subject to his discretion, 
to aid him with your whole force, or such part 



11 

thereof as may be sufficient to enable him, with* 
in his District, to discharge his duties, prevent 
disorders and opposition to the authority of 
Government, and carry the aforesaid Laws into 
execution. Recollecting that in the happy govern- 
ment established by the American people^ the character 
of the citzen is not lost in that of the soldier^ and that 
coolness^ firmness^ prompt obedience^ and a sacred re- 
gard to the rights of society and individuals are essen- 
tial to both ; yctfivill duly appreciate this opportunity of 
serving your country^ and of even increasing the com 
Jidence she has placed in you. You will make 
correct muster and pay rolls of such militia as 
shall be employed in actual service, and transmit 
the same to the War Department of the United 
States. 

LEVI LINCOLN. 



HeA4D Quarters at Bo$ton,'> 

1st FBBR¥ARy, 1809. 3 

By order of the Commander in Chief, 

WILLIAM DONNISON, Adjt, Gen, 



LIBRARY OF CONGRESS 



011 838 489 1 



SCHEDULE referred io in the REPORT. 




Infantry. j 
Hani andjile of Names of the Officers 



their entire com- 
vtanU 



appointed. 



Rank. 



Number in hisV,,, cj - 

Regt. ^346p^«'^^^^^^g^'^ 

^r^fi"< '''Charles Turner 
Regt 646 j 

l.f>i^^ 21474' 

^-^^*^f, David Nye 
Regt» 146Z ' 



""'umber In his 
Lit," '•■n, 4976 



Lieut. Col. 
Lieut Col. 

"; •'y '?• -• :. 
Juieut. Col. 
Captain 



Place of 
Abode. 



iBoston 
Scituate 



Near ivhat Fort 
of Entry they 

reside* 

Boston. 
Plymouth. 



Baker Loraig 

Ebenezer Bowdich iCaptain 

Thomas Williams jCaptain 

James Brickett Major-Gen 

Charles Bean Captain 

Simon Nowell jCaptain 

Moses Bradbury Captain 

Number in his j^ .jj Lieut. Col. 

Regt. 986 J 

Number in his j^^^j^^ ^^^^^^^^ Lieut. Col. 

Regt 493 

Joshua Danforth 'Captain 

Number in his g^^^^lR^^j Lieut. Col. 

Regt ^^^ j 1 

Number in hi.s| ^„ I ^j ^^^^ 

Brig. IH4 \^ ^ \ ^ 



Falmouth JEdgarton. 

i 
New-Bedford New- Bedford. 



Salem 

Marblehead 

Haverhill 

York 

Wells 

Saco 

Falmouth 

Brunswick 

Wi^casset 

Bristol 

Machias 



lias }. 



Salem. 

Marblehead. 

Newburyport 
and Ipswich. 

York; 

Kennebunk. 

Saco. 

Portland. 

Bath. 

Wiscasset. 

Waldoborough. 

Machias, Passa- 
raaquoddy and 
Moose Island. 



^^i:rt^-.r.fl:yf'^fr.. ' -'^T'^\^- rjyr^^s:-^^^^ *i«:5>iV:crvllo».f^ci above l-.i* .^, 
no i ^-e }w 10 tr.e 0*-eis ; Ar / ar auued at the laquesc of tiir 
Conimitue J the Order mentions no numbers. 
Attest — 

WILLIAM DONNISON, AdjutanuGeneraL 



b 







LIBRARY OF CONGRESS 




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